How JustAnswer Works:

  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site.
    Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.

Ask LawTalk Your Own Question

LawTalk
LawTalk, Attorney
Category: California Employment Law
Satisfied Customers: 28001
Experience:  I have 30 years of experience in the practice of law, including employment law and discrimination law.
15277592
Type Your California Employment Law Question Here...
LawTalk is online now
A new question is answered every 9 seconds

Good afternoon, I am consulting for a small employer in California.

Customer Question

Good afternoon,
I am consulting for a small employer in California. The employer has 1 at-will employee. There is a signed at-will employment contract in place. The contract states that, “Employer or Employee may terminate this Agreement at any time effective upon notice to the other party, and for any reason or no reason, for cause or without cause.” The employee gave notice to the employer via email message on February 27, 2013, stating employee had been forced to seek other employment due to the need to make more money to live. Employee offered 2 weeks’ notice, give March 14th as the last day employee would work.
The employer has determined that employee is to be terminated immediately, and will not be required nor allowed to work the 2 weeks. The employer plans to terminate the employee either via telephone this afternoon (March 4), or in person tomorrow morning at the beginning of the shift (March 5). In either case, employer will present employee with the final paycheck for all money owed in regard to salary and accrued vacation pay at the beginning of business tomorrow (March 5). Employee has employer paid health insurance coverage, which has been paid through the end of March, 2013, and will be offered continued coverage under COBRA law.
Given the above, I have a few questions in order to ensure the employer follows proper procedure in terminating the employee:
1. Since the employee has initiated the termination by giving notice:
a. Is the employee entitled to unemployment insurance benefits through the EDD (assuming employee is not terminating for any cause)?
b. Is the employer obligated to pay the employee the additional 2 weeks’ pay? If not, is it recommended that the employer pay the employee the 2 weeks’ pay anyway?
2. The employer plans to deliver a letter to employee in person, at the time of the termination tomorrow, thanking the employee for past service, detailing the basic facts surrounding termination (i.e. employee initiated termination of employment via email, offering 2 week’s notice, and that employer declined to continue employment for the 2 weeks), and noting enclosed final paycheck for all pay due employee at termination. Is this recommended? If so, do you have any suggestions for things to include in this letter?
3. Should the employer require the employee to sign a statement of some sort that employee was terminated? If so, please provide example.
In addition to the above questions, I would appreciate any further information you may deem useful to the employer in this action.
Thank you,
Colleen Hendrix
Submitted: 1 year ago.
Category: California Employment Law
Expert:  LawTalk replied 1 year ago.
Good afternoon Colleen,

I'm Doug, and I'm sorry to hear of the confusion. My goal is to provide you with excellent service today.

You asked:
1. Since the employee has initiated the termination by giving notice:
a. Is the employee entitled to unemployment insurance benefits through the EDD (assuming employee is not terminating for any cause)?
Yes, but in this case not for the first week which is the required waiting week, and then only until the date they originally gave as their last day.
b. Is the employer obligated to pay the employee the additional 2 weeks’ pay? Absolutely not. If not, is it recommended that the employer pay the employee the 2 weeks’ pay anyway? The employer may give the employee two weeks pay, consider it wages for two weeks and that will avoid the employee being able to file for unemployment---which might be in the best interest of the employer.
2. The employer plans to deliver a letter to employee in person, at the time of the termination tomorrow, thanking the employee for past service, detailing the basic facts surrounding termination (i.e. employee initiated termination of employment via email, offering 2 week’s notice, and that employer declined to continue employment for the 2 weeks), and noting enclosed final paycheck for all pay due employee at termination. Is this recommended? It is neither required under the law, nor suggested. There is no reason to put all of this in writing, and it does not serve to preserve any rights of the employer, or limit the rights of the departing employee.If so, do you have any suggestions for things to include in this letter? If the employer feels compelled to provide a letter, then limit it to confirming that the final wages, including accrued vacation time is enclosed, and simply thank the employee for their past assistance, if that is something the employer wants to do---though the same thing can be done by the person handing the employee their final check, and nothing need be put ion writing.
3. Should the employer require the employee to sign a statement of some sort that employee was terminated? If so, please provide example. No, the employer should not ask the employee to sign anything. A demand that something be signed can only lead to problems such as a claim that the employer withheld final wages in an attempt to get the employee to acknowledge that there are being terminated---which if true, would be a violation of the CA Labor Code.

I think that the best way to proceed---and I often suggest that employer terminate employees who have just given notice as a precautionary measure against possible problems in the final days of employment----is to hand the employee their final check, and any additional wages in the future that the employer might want to give, thank them verbally for their service and wish them well.

Avoid any attempt by the employee to engage in a debate about why the employer chose to do this, or get in an argument about fairness. Nothing good can come out of such exchanges with the employee.

You may reply back to me using the Continue the Conversation or Reply to Expert link if you need any clarification of my answer.


Please remember to rate my service to you when our communication is completed, so that I will be compensated for my time in providing you with the information you requested. I will be happy to continue further, and to assist you until I am able to address your concerns, to your satisfaction.

I wish you the best in 2013,

Doug
Customer: replied 1 year ago.

Thank you, Doug.



Most of what you've written is fairly clear. I do have a couple follow up questions. Upon review of the employee's email to the employer, the employee state March 21, 2013 as the last day of employment:


 


"Please accept this as my official notice of resignation as of February 27, 2013. Unfortunately, having my hours reduced so dramatically, with so little notice, has left me with few options. However, I have been fortunate enough to secure a comparable position with someone else. My last day [at work] will be Thursday, March 21, 2013."


 


If it is of significance, the employee signed the at-will employment agreement on February 13, 2013, stating, among other things, that the employee would work approximately 20 hours per week and would be paid semi-monthly. Previously, the employee had been working with no contract since February 2012, at roughly 40 hours per week. The rate of hourly pay remained consistent with the rate of pay prior to entering into the agreement; however the hours, as you can see, were cut in half. That may or may not have any bearing in the matter.


 


Also, please note that the employee will be due 20 hours paid vacation time per the employment contract signed.


 


Given that the employee stated that the last day of employment would be March 21, 2013, here are my additional questions:


 


1. If the employer decided to pay the employee through March 21, 2013, that would cover approximately 1 1/2 pay periods. Employee would have received a semi-monthly paycheck on March 16th, for the period of March 1 - March 15, 2013; and would not have been paid again until April 1, for the period of March 16 - March 31, 2013.


 


Based on the above, I would propose the employer pay the employee full pay through March 15, 2013; and then the equivalent amount for the period of March 16 - March 21, 2013. Essentially, the total amount would be two full paychecks, or one month's salary at 20 hours per week. This would represent the first 2 weeks of March, plus the 3rd week of March, plus the 20 hours of paid vacation due.


 


Although I realize (I think) that the employer is NOT obligated to pay anything beyond the vacation pay due and time worked through February 27, 2013, it looks to me as though the simplest and cleanest way to wrap this up. Please let me know what you recommend.


 


Thanks, XXXXX XXXXX

Expert:  LawTalk replied 1 year ago.
Hi Colleen,

You asked:


Most of what you've written is fairly clear. I do have a couple follow up questions. Upon review of the employee's email to the employer, the employee state March 21, 2013 as the last day of employment:



"Please accept this as my official notice of resignation as of February 27, 2013. Unfortunately, having my hours reduced so dramatically, with so little notice, has left me with few options. However, I have been fortunate enough to secure a comparable position with someone else. My last day [at work] will be Thursday, March 21, 2013."



If it is of significance, the employee signed the at-will employment agreement on February 13, 2013, stating, among other things, that the employee would work approximately 20 hours per week and would be paid semi-monthly. Previously, the employee had been working with no contract since February 2012, at roughly 40 hours per week. The rate of hourly pay remained consistent with the rate of pay prior to entering into the agreement; however the hours, as you can see, were cut in half. That may or may not have any bearing in the matter. No, it is of no significance. An at will agreement that states that 20 hours a week is anticipated is not a guarantee or a contract of employment.



Also, please note that the employee will be due 20 hours paid vacation time per the employment contract signed. Then as of the date of the agreement to provide vacation time, the employee must be paid for the vacation time accrued in the interim---between the date vacation was promised and when termination occurs. Only a pro rata share of vacation need be paid though. Not what was perhaps promised for the whole year.



Given that the employee stated that the last day of employment would be March 21, 2013, here are my additional questions:



1. If the employer decided to pay the employee through March 21, 2013, that would cover approximately 1 1/2 pay periods. Employee would have received a semi-monthly paycheck on March 16th, for the period of March 1 - March 15, 2013; and would not have been paid again until April 1, for the period of March 16 - March 31, 2013.



Based on the above, I would propose the employer pay the employee full pay through March 15, 2013; and then the equivalent amount for the period of March 16 - March 21, 2013. Essentially, the total amount would be two full paychecks, or one month's salary at 20 hours per week. This would represent the first 2 weeks of March, plus the 3rd week of March, plus the 20 hours of paid vacation due. There is nothing wrong with proposing that. Again, though, it is more than is required under either federal employment law, or CA law.



Although I realize (I think) that the employer is NOT obligated to pay anything beyond the vacation pay due and time worked through February 27, 2013, it looks to me as though the simplest and cleanest way to wrap this up. Please let me know what you recommend. The benefit in doing this---paying the wages through the 21st, is that it eliminated the unemployment claim, and any possible increase in unemployment premium that the employer might have to pay if unemployment benefits were granted. It sounds fine to me.

 

You may reply back to me again, using the Reply to Expert link, if you have additional questions.

I wish you the best in your future,

Doug

Customer: replied 1 year ago.

I tried to add this part at the end of my last reply, but do not know if it ever reached you. I have spoken with the employer and given the information you have provided. Understandably, the employer does not wish to pay the employee any more than what is due under the terms of the contract or federal and state laws.


 


The employer would like to know if the terms of the signed contract would preclude the employee for filing an unemployment claim with the EDD. The specific language of the contract to which he is referring is as follows:


 


Mandatory Arbitration. Except for the extent pre-empted by federal or state administrative law (but only to the extent such laws may not be waived) any and all controversies or claims arising out of or relating to this Agreement or the break thereof, including without limitation injunction relief, shall be settled by binding arbitration before the American Arbitration Association (or the successor thereof) according to such arbitrator’s arbitration rules.”


 


If the employer elects NOT to paid anything above the 20 hours of paid vacation due under the terms of the contract agreement, would the employee still be able to file (and receive) and unemployment claim with the EDD for wages through March 21, 2013?


 

Expert:  LawTalk replied 1 year ago.
Good afternoon Colleen,

You asked:

The employer would like to know if the terms of the signed contract would preclude the employee for filing an unemployment claim with the EDD. The specific language of the contract to which he is referring is as follows:



Mandatory Arbitration. Except for the extent pre-empted by federal or state administrative law (but only to the extent such laws may not be waived) any and all controversies or claims arising out of or relating to this Agreement or the break thereof, including without limitation injunction relief, shall be settled by binding arbitration before the American Arbitration Association (or the successor thereof) according to such arbitrator’s arbitration rules.” Entitlement to unemployment compensation is a state law, and state policy, that may not be abrogated by contracting with the employee to not claim it.



If the employer elects NOT to paid anything above the 20 hours of paid vacation due under the terms of the contract agreement, would the employee still be able to file (and receive) and unemployment claim with the EDD for wages through March 21, 2013? Yes, an employee terminated after giving notice is still entitled to unemployment through the date they supplied as their last day---presuming that the termination is not based on good cause such as a violation of company policy or safety regulations of the employer. I presumed this not to be the case when you stated that the termination is just in response to the notice of resignation by the employee for a future date.

 


You may reply back to me again, using the Reply to Expert link, if you have additional questions.

I wish you the best in your future,

Doug

 

 

LawTalk, Attorney
Satisfied Customers: 28001
Experience: I have 30 years of experience in the practice of law, including employment law and discrimination law.
LawTalk and other California Employment Law Specialists are ready to help you
Expert:  LawTalk replied 1 year ago.
Thank you for your positive rating of my service, Colleen. It has been my pleasure to assist you and I hope you will ask for me on JustAnswer should a future need ever arise.

Please feel free to bookmark the following link so you can request me to answer any future legal questions you may have:
http://www.justanswer.com/law/expert-lawtalk/

Thanks again.

Doug

When you receive your Customer Satisfaction Survey from JustAnswer, please do rate me highly (8-10) there as well. It benefits my ability to assist you and other customers, and would be tremendously appreciated.

JustAnswer in the News:

 
 
 
Ask-a-doc Web sites: If you've got a quick question, you can try to get an answer from sites that say they have various specialists on hand to give quick answers... Justanswer.com.
JustAnswer.com...has seen a spike since October in legal questions from readers about layoffs, unemployment and severance.
Web sites like justanswer.com/legal
...leave nothing to chance.
Traffic on JustAnswer rose 14 percent...and had nearly 400,000 page views in 30 days...inquiries related to stress, high blood pressure, drinking and heart pain jumped 33 percent.
Tory Johnson, GMA Workplace Contributor, discusses work-from-home jobs, such as JustAnswer in which verified Experts answer people’s questions.
I will tell you that...the things you have to go through to be an Expert are quite rigorous.
 
 
 

What Customers are Saying:

 
 
 
  • Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises! Gary B. Edmond, OK
< Last | Next >
  • Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises! Gary B. Edmond, OK
  • My Expert was fast and seemed to have the answer to my taser question at the tips of her fingers. Communication was excellent. I left feeling confident in her answer. Eric Redwood City, CA
  • I am very pleased with JustAnswer as a place to go for divorce or criminal law knowledge and insight. Michael Wichita, KS
  • PaulMJD helped me with questions I had regarding an urgent legal matter. His answers were excellent. Three H. Houston, TX
  • Anne was extremely helpful. Her information put me in the right direction for action that kept me legal, possible saving me a ton of money in the future. Thank you again, Anne!! Elaine Atlanta, GA
  • It worked great. I had the facts and I presented them to my ex-landlord and she folded and returned my deposit. The 50 bucks I spent with you solved my problem. Tony Apopka, FL
  • Wonderful service, prompt, efficient, and accurate. Couldn't have asked for more. I cannot thank you enough for your help. Mary C. Freshfield, Liverpool, UK
 
 
 

Meet The Experts:

 
 
 
  • LawTalk

    Attorney

    Satisfied Customers:

    936
    I have 30 years of experience in the practice of law, including employment law and discrimination law.
< Last | Next >
  • http://ww2.justanswer.com/uploads/LA/LawTalk/2012-6-6_17379_LawTalk.64x64.JPG LawTalk's Avatar

    LawTalk

    Attorney

    Satisfied Customers:

    936
    I have 30 years of experience in the practice of law, including employment law and discrimination law.
  • http://ww2.justanswer.com/uploads/MU/multistatelaw/2011-11-27_173951_Tinaglamourshotworkglow102011.64x64.jpg Tina's Avatar

    Tina

    Attorney

    Satisfied Customers:

    888
    JD, 17 years experience & recognized by ABA for excellence in employment law.
  • http://ww2.justanswer.com/uploads/PI/PIExpert/2012-7-1_152453_Attorney.64x64.jpg Brandon, Esq.'s Avatar

    Brandon, Esq.

    Lawyer

    Satisfied Customers:

    334
    Has received a certificate of recognition from the California State Senate for his outstanding legal service.
  • http://ww2.justanswer.com/uploads/PH/phoenixrising119/2012-7-26_11214_043.64x64.jpg melissamesq's Avatar

    melissamesq

    Attorney

    Satisfied Customers:

    47
    Represent clients to maximum recovery in employment cases.
  • http://ww2.justanswer.com/uploads/IG/Iggy1001/2013-11-20_23344_JApic.64x64.jpg Joseph's Avatar

    Joseph

    Lawyer

    Satisfied Customers:

    3755
    Extensive experience representing employees and management
  • http://ww2.justanswer.com/uploads/JK/jkiani22/2013-11-18_15348_JacobKiani1copy2.64x64.jpg jkiani22's Avatar

    jkiani22

    Attorney

    Satisfied Customers:

    24
    Attorney
  • /img/opt/shirt.png Legal Counsel's Avatar

    Legal Counsel

    Lawyer

    Satisfied Customers:

    32
    California Licensed Attorney- 29 years- Wages, Hours, Overtime, Discrimination, Wrongful Termination.
 
 
 
Chat Now With A California Employment Lawyer
LawTalk
LawTalk
Attorney at Law
937 Satisfied Customers
I have 30 years of experience in the practice of law, including employment law and discrimination law.